Injury ad ban to stay, judges rule

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Plaintiff lawyers have lost their High Court challenge to the NSW Government's ban on advertising for personal injury work, in a decision that defines the limits of political free speech in Australia.

In a 5-2 verdict, the court said the dominant purpose of the ban was to restrict the marketing of legal services not the discussion of issues that could affect the way a person voted.

If the lawyers had persuaded the court their ads were political speech and protected under the constitution, the NSW law would have been declared invalid for interfering with the public's right to be informed about government or political matters.

But Justice Michael McHugh said courts and judges would rarely come within the ambit of political speech because they were not elected, unlike MPs or those answerable to elected officials, such as police.

He said the freedom would extend only to results of cases and the reasoning or conduct of judges when they were tied to "acts or omissions of the Parliament or the executive". It would not cover judicial conduct alone.

Justice Michael Kirby said the freedom should apply "to the judicial branch of government as much as to the legislative and executive".

Chief Justice Murray Gleeson and Justice Dyson Heydon said the fact an ad might mention a political issue or name a politician was not decisive. They said the ads were aimed at encouraging people to engage lawyers.

"Such communications are an essentially commercial activity," they said. "The regulations are not aimed at preventing discussion of, say, tort law reform, or some other such issue of public policy. They restrict the marketing of professional services." For the same reason, there was no restriction on access to the courts.

Justice Ian Callinan said if there were no limits on what was political matter, the freedom would be wider than that enshrined in the US constitution.

"There will always be many groups pressing governments … [to] regulate every form of temporal utopia imaginable," he said. "But there must, in a practical world, be limits."

Justices McHugh and Kirby dissented, saying the ads would have informed people about their rights so they could enforce them. Justice McHugh said the constitution made it clear states could not pass legislation "which has the effect or object of reducing litigation".

The Government has exempted community legal centres, but outlawed bodies such as the Australian Injury Helpline that "harvest" claims and refer them to legal firms for a fee.

The Legal Services Commissioner, Steve Mark, said there was now no impediment to him prosecuting those who flouted the ban, which took effect in 2003.

Richard Faulks, president of the Lawyers Alliance, which brought the action, said other professions should be concerned. "If governments can impose these types of restrictions on lawyers, they can do it for any other industry."